Permitted Contact

Rule 3.5(b) forbids a lawyer to “communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order.”¹ The closing clause writes one exception into the prohibition, and the rule's purpose marks out a second. That purpose is to keep one side from influencing a decision the other side cannot answer. A judge who hears one party privately is exposed to one-sided argument, and that exposure opens the door to favoritism.² Contact that cannot influence the decision threatens none of this, and contact that law or a court order has approved has already been judged acceptable by someone entitled to judge it.

Each permission has a limit, and examination questions are written at the limits. Scheduling contact is permitted only while it stays on scheduling, so a call that starts with a hearing date and turns to why a motion should be granted falls back inside the prohibition. Authorization reaches only as far as the law or order extends. The subsections below take the two permissions in turn, beginning with contact that never touches the merits.

Housekeeping Matters

Read at full breadth, Rule 3.5(b) would bar a lawyer from phoning the clerk's office during a pending matter to ask which hearing dates are open. The rule has no such target. It aims at one-sided influence on an undecided matter, and a question about the calendar carries none: which dates are open, whether a filing arrived, and when a calendar call begins have no bearing on how the matter will come out. The judicial-conduct rules draw the line from the judge's side. Their ban on ex parte communication does not extend to communications for “scheduling, administrative, or emergency purposes,” which they distinguish from communications on “substantive matters.”³ Rule 3.5(b) has no separate scheduling clause, but the judge-side line shows where the concern behind the lawyer's rule ends.

The reason follows from what the prohibition protects. An absent party loses something only when the conversation contains something to answer. A question about open dates contains no argument, no fact bearing on the merits, and no request that the matter be decided one way, so the absent party has nothing to rebut. Such contact usually goes to a clerk or to docket staff, and those offices stand where the judge stands, because the judge's staff is an extension of the judge. A communication that would be improper for the judge is improper for the staff.⁴ A clerk may answer a question about dates; the same clerk cannot properly carry argument about the merits.

The judge-side exception carries conditions that reveal what it depends on. It applies only when the judge does not reasonably believe the communication will advantage a party, and excluded parties must be promptly notified and offered an opportunity to respond.⁵ Those conditions bind the judge, so a lawyer should not read them as a notice step to complete before asking about dates. Their value in analyzing a lawyer's call lies elsewhere: they show that the exception turns on whether one side gains an advantage. A call that stays on logistics advantages no one. A call that gives the court reason to think a motion deserves special attention does.

A careless analysis treats the word “scheduling” as a password: the stem says the lawyer called about a hearing date, so the call must be permitted. The label does not decide the question. What the lawyer says does, and a call can begin as housekeeping and end as something else.

Both lawyers spoke privately to court personnel about a hearing date, so the difference between them lies in what was said. The remark about importance moved the second call across the line, because it is the only part of either conversation that could affect the outcome. A lawyer who thinks the motion deserves prompt handling has a proper route in a request filed with the court and served on opposing counsel, which reaches the opponent when it reaches the court. The same test settles any contact that fits neither pattern, such as a call to confirm that a filing arrived: could the exchange affect how the matter will be decided? If it could, the housekeeping label gives no shelter.

Authorized by Law or Order

The closing clause of Rule 3.5(b) writes the second permission into the prohibition itself: a lawyer may not “communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order.”⁷ Housekeeping contact is permitted because it cannot affect the ruling. Authorized contact is permitted even though it can, because someone entitled to approve it has done so in advance. The clause names two sources of authority, law (a procedural rule, for example) and a court order, and both lie outside the lawyer. A lawyer's own conclusion that contact is justified appears on neither list.

The standard example is the emergency restraining order. Under narrow circumstances, such as when a party seeks an emergency restraining order, a lawyer may be permitted to appear before a judge or other judicial officer without the opposing party or that party's representative.⁸ The emergency is what justifies proceeding without the other side. A lawyer who uses a procedure the law provides for that purpose does what the law permits, and the lawyer's task is to bring the application within the procedure.

Authorization by law is not limited to restraining orders. The judicial-conduct rules list, among the exceptions to their ban on ex parte communication, communications “expressly authorized by law,” a catch-all that has acquired specific relevance in the so-called problem-solving or therapeutic courts movement.⁹ Those provisions regulate judges and supply no lawyer-side test. They do show the pattern: authorization is something a lawyer can point to, and not something a lawyer senses.

The requirement that authorization come from outside the lawyer has a structural reason. Nearly every lawyer with a pending motion believes it deserves prompt attention, and nearly every lawyer can call the other side's participation unnecessary. If a lawyer's sense of urgency or harmlessness could authorize private contact, the exception would swallow the prohibition, because the person deciding whether secrecy is justified would be the person who gains from it. Law and court orders place that decision with a rulemaker or a neutral judge. A lawyer who sees an emergency therefore has a route: invoke the procedure the law provides, and let the neutral decide.

Local custom is never authorization. A bar that routinely telephones chambers about discovery disputes has formed a habit, and a habit is neither law nor a court order.

This lawyer and the landlord's lawyer both spoke privately to a judge about a pending matter with the opponent absent. What separates them is the source of permission: one acted under a procedure the law created for emergencies, the other under a habit. The earlier discussion of good faith applies with full force, because a lawyer's sincere reliance on local practice does not turn a violation into compliance.

Authorization carries a cost. The absent party cannot present the other side, so the lawyer who appears ex parte takes on a special duty of candor. Under Rule 3.3(d), the lawyer must inform the tribunal of all material facts known to the lawyer that will enable an informed decision, whether or not the facts are adverse.¹⁰ The next section develops that duty.